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2002 DIGILAW 1544 (RAJ)

Bhanwar Singh Bhati v. State of Rajasthan

2002-09-05

D.N.JOSHI, RAJESH BALIA

body2002
JUDGMENT 1. - The matter has come up on an application under Article 226(3) of the Constitution of India for vacating the interim order passed by this Court. 2. We have heard learned counsel for the parties on the merits of the case for final determination. 3. The petitioner was firstly appointed as Peon on 24.7.1986 in Integrated Guinea Worm Irradiation Project against the temporary post. The said Project was under the Department of Tribal Areas Development Department, Government of Rajasthan, Udaipur. This Project was finally merged into the Sanitation, Water and Community Health Project, known as "SWACH". 4. By order dated 17.5.1992 in all 102 posts of the SWACH Project, Udaipur, Dungarpur and Banswara were converted into permanent posts, out of which 8 posts were categorised for Class IV employees. In pursuance thereof, the petitioner was made permanent on the permanent post vide order dated 30.3.1995. Thereafter, vide order dated 3rd April, 1995 issued from the office of the Divisional Commissioner, Udaipur, 8 persons named therein were transferred to different departments against available corresponding vacant posts. This included the name of the petitioner and he was transferred to District Education Officer (Boys), Rajsamand and since then the petitioner was working under the Education Department, Rajsamand. 5. He has been assigned seniority as a regularly appointed permanent employee of the State amongst Class IV employees of the District Education Officer (Boys), Rajsamand. During this period, the parent department, from which the service of the petitioner were transferred also issued a clarificatory order that the employees to whom the regular pay scale was given before 27.5.92, they should be treated as permanent w.e.f. 27.5.92. He was also granted selection scale while serving under the Education Department vide order dated 19.4.1997 and has been issued commendation certificate by the officers from time to time of the Education Department. By order dated 24.1.2002, the District Education officer, Secondary Education, Rajsamand allowed the petitioner merit increment by including his name in the permanent seniority list. 6. This followed with the impugned order dated 4.5.2002 issued by the District Education Officer, Secondary Education relieving the petitioner from his duties by declaring that the transfer of the petitioner from SWACH Department was contrary to the Rules and therefore, he should report back to his parent department. 6. This followed with the impugned order dated 4.5.2002 issued by the District Education Officer, Secondary Education relieving the petitioner from his duties by declaring that the transfer of the petitioner from SWACH Department was contrary to the Rules and therefore, he should report back to his parent department. When the petitioner in compliance of the aforesaid order approached his parent department on 6.5.2002, he was declined to be taken on duty by pointing out that since the petitioner has been transferred vide order dated 3.4.1995 to the Education Department and which was accepted by allowing him to join and passing various orders, he cannot now be returned to the parent department. It was also pointed out that the SWACH Project at which the petitioner was appointed, and which was financed by the UNICEF has since come to end in December, 1995 and no sanctioned post is available on which Bhanwar Singh could be taken back. It may be noticed that this order has been issued by Directorate, SWACH Project, Udaipur. The above fact is noticed only for the purpose of pointing out that the Directorate of SWACH Project still continue to exist and different Projects under Directorate are functioning. The petitioner again reported back to the District Education Officer, Rajsamand on 7.5.2002, but he was refused to be taken on duty by the District Education Officer. Thus, it is apparent that with some inter departmental dispute, the petitioner has been made shuttle-cock. 7. In this connection, the petitioner has also placed on record the directions issued by the office of Dy. Director, Secondary Education, Udaipur Division, Udaipur on 24.1.2002 directing the District Education Officer, Rajsamand to return the services of the petitioner to his parent department because of his transfer was invalid and because of the Rajasthan Public Services (Regularisation of Appointment and Regulation) Act, 1999, the services of the petitioner cannot be regularised. 8. The petitioner has submitted that he having been appointed regularly against the temporary post, which was subsequently converted into permanent and he was also granted permanent status under the Department of Tribunal Areas Department of the State of Rajasthan since 1992, he was already a regular permanent employee of the State against a sanctioned permanent post and the impugned direction of the Dy. Director, Education Department and consequent order of his re-patriation to the parent department is not well founded on facts. Director, Education Department and consequent order of his re-patriation to the parent department is not well founded on facts. The question of regularisation at all does not arise in the case of petitioner as he was not a 'temporary employee' within the meaning of term as envisaged under the provisions of Act of 1999, which defines the term 'daily rated employee' to include all temporary employees and employees other than regularly appointed to a sanctioned post. He was not on deputation with the Education Department, from which he could be repatriated by the Department under which he was on deputation. He has not been absorbed on being declared as surplus nor he was transferred on his own request. If the Divisional Commissioner in administrative exigencies has thought it fit to transfer the petitioner from the Department of Tribal Areas Department to the Education Department in the year 1995, the petitioner is nowhere responsible for the same. The respondents having accepted that transfer in 1995 cannot now after 7 years turn round and put the clock back by sending the petitioner back to SWACH Department, nor the Education Department can now compel on its own the parent department to take back the petitioner in service. 9. Be that as it may, the petitioner had no intention of settling this inter departmental dispute in as much as that he in compliance of the order Annexure 12 dated 4th May, 2002 immediately reported to the parent Department for joining but he has been refused admission to that Department and has been asked to go back to the Education Department. Apparently, the petitioner contends that he cannot be made shuttle-cock like this to lose the status of state employee under the State. Whether he serves the Tribal Areas Department or the Education Department is of little relevance as far as he is concerned. But, in no case he could be used as a shuttle-cock sending him from one place to another and rendering him rudderless and force him in a compulsion to litigate for his statute for no fault of his own. 10. The respondents Education Department in their reply has placed sole reliance on the ground that his initial order of transfer by Divisional Commissioner was not valid under the Rules and therefore, petitioner does not acquire any right to continue under the Education Department. 11. 10. The respondents Education Department in their reply has placed sole reliance on the ground that his initial order of transfer by Divisional Commissioner was not valid under the Rules and therefore, petitioner does not acquire any right to continue under the Education Department. 11. On behalf of the SWACH Project, it has been contended that the order passed by the Divisional Commissioner transferring the petitioner from SWACH Project to the Education Department in administrative exigencies, which has been fully complied with and operated and there is no reason now to turn back and send the petitioner back to the parent department. The objection about the invalidity of transfer cannot be countenanced. It has supported the petitioner's case for continuance in Education department. 12. On behalf of the Education Department, it has also been contended that because the petitioner was never declared as a surplus, he cannot be absorbed in the Education Department and that since he was appointed only against a Project, he had no right to continue in service after the Project was complete and therefore, his continuance after the Project, of which he was employee has come to an end in December, 1995, his services automatically ought to have come to an end and therefore, he is also not entitled to regularisation of his services by any method. 13. We at the outset regret to observe that this litigation is most unfortunate His appointment through regular recruitment procedure is not in dispute. Conversion of temporary post into permanent post is also not in dispute and the conversion of the petitioner from temporary appointment into permanent appointment is also not in dispute. In that circumstances, it is rather too late on behalf of the Education Department to contend that the petitioner's services were liable to be terminated at the time of completion of the Project. in raising this issue, the learned counsel has over-looked the fact that the petitioner services were transferred to the Education Department as a permanent employee, whose initial appointment for a temporary period was itself a regular appointment. His services were not liable to be terminated at the close of one of the Project of SWACH Department only. Moreover, his services were transferred to the Education Department before the Project has come to an end. His services were not liable to be terminated at the close of one of the Project of SWACH Department only. Moreover, his services were transferred to the Education Department before the Project has come to an end. The service of the petitioner as a Project employee in the Education Department was transferred in April, 1995 when the Project was very much in existence. 14. It appears that the particular. project on which the petitioner was functioning was financed by the UNICEF and that Project was to come an end when the financing was to be over. Envisaging this contingency, the services of the permanent employees have been transferred to other departments. The minutes of meeting held under the Chairmanship of the Chief Secretary of the Government of Rajasthan in July, 1995, which meeting consisted of the Medical & Health Secretary, Education Secretary, Finance Secretary, Tribal Development Secretary.and other representatives of UNICEF and SWACH Project, in which it was noticed that only 57 persons, were working in July, 1995 with SWACH Project, out of which 20 persons on deputation from other departments and 30 were working on regular pay scale. It is not the case of any of the respondents that the petitioner was one of those 57 persons working in July, 1995. Thus, it is apparent from the facts stated above that in view of impeding closure of certain Projects of SWACH, the decision was taken to transfer the services of regular permanent employees against the available regular vacancies of different departments and in implemention thereof, the Divisional Commissioner has issued an order deonounced by the Education Department also. There is nothing to suggest against regularity of orders issued by Divisional Commissioner transferring the petitioner's service to Education Department, a presumption which such official act carries with it. Unless, something positively is shown to the contrary, existence of all necessary requisite of its regularity has to be assumed. 15. The letter of Dy. Director, Secondary Education, Udaipur Division, Udaipur dated 24.1.2002 appears to be more arising out of apprehension that the services, which has been transferred to the Education Department was by way of a process of regularisation and therefore, in view of the Act of 1999, it would not be possible to regularise the services of the petitioner in the Education Department because their appointment by transfer is irregular. 16. 16. We are of the opinion that the aforesaid apprehension, which has been given in communication dated 24.1.2002 in respect of 6 LDCs transferred to Educational Department on 31.3.1995 is wholly on unfounded premise so far as the petitioner is concerned. The regularisation with which the Act of 1999 concerns were the services, which were temporary and which has been otherwise than by way of regular appointment against permanent post. We have noticed above that so far as the appointment of the, petitioner is concerned, and continuance of the petitioner as Class IV employee under the service of the State is concerned, was not depending upon any act of regularisation at the time when these instructions were issued. He was in fact regularly appointed against a permanent post. In that view of the matter, the Act of 1999 had no application so far as the service of the petitioner is concerned. In case, it was to be held that the transfer from the parent department to the Education Department was contrary to Rules, at best, he could have been reverted back to the parent Department. But in no way attracted the provisions of the Act of 1999 so as to anticipate necessity to consider the case of regularisation of petitioner's services as such. At best, it could be a case of regularising State's own action of inter department transfer in infraction of some rule, which could be ratified at any time. 17. Apart from this, we further notice that part of the provisions of the Act of 1999 namely Sections 9, 11 and 19, which prohibit regularisation of services in absolute terms, has been held to be ultra vires the provisions of the Constitution as well as the repugnant to the Industrial Disputes Act, which occupies the field on which the provisions of the Act of 1999 are to operate as has been held by the Division Bench of this Court held in Bhawani Singh & 17 Others v. State of Rajasthan, D.B.C. Writ Petition No. 3271/2001, decided on 23.7.2002 . 18. 18. It is apparent that the petitioner having already joined the Education Department in terms of the order passed by the Divisional Commissioner in 1995 and he has been already integrated into the Education service by giving seniority, regular pay scale and the merit increment, it was not open for the respondents to deny him all privileges without affording him an opportunity of hearing by taking impugned decision in their closed rooms as it was not merely a policy decision, which was effecting the petitioner but was an administrative action directly affecting the petitioner adversely. 19. Apart from the aforesaid, it is apparent that the act of the respondents in dealing with the petitioner has been less than fair just and reasonable. Obviously, no fault, default or lapses on his part can be found and notwithstanding finding that his services are otherwise very satisfactory, to put him on the road in search of a destination as Education Department as well as the parent department, both have disowned him is an act which suffers from gross arbitrariness. 20. Apparently, any Department of the State which are subordinate to the State are as much required to act with fairness and bereft of any arbitrariness and unreasonableness. If there is any dispute between the two Departments as to where the petitioner should serve as a permanent employee, it has to be resolved Iy higher authorities of the State, but not by one department unilaterally by asking the petitioner, who is working with them for 7 years to return back to his parent house without there being any methodology under which the Education Department can compel parent department to take back the petitioner on duty. This order would if at all could have passed by the State Government. In that event, the petitioner would not have suffered any consequences as it would bind both the departments. Such unilateral decision on the Education department cannot be countenanced. 21. In view of the aforesaid circumstances, we allow this petition and quash the impugned order Annexure. 12 and direct the Education Department to allow the petitioner to continue with it. No order as to costs.Writ Petition Allowed. *******